Supreme Court Now Welcomes Amicus Filings at the Petition Stage

It’s been a hot topic for years: does the North Carolina Supreme Court want to hear from amici when the Court is weighing whether to allow discretionary review of a decision of the Court of Appeals?

You can see why amicus participation would be helpful. In North Carolina, one statutory pathway to discretionary review is showing that “the subject matter of the appeal has significant public interest.” N.C. Gen. Stat. § 7A-31(c)(1). What better way to show the Court that the public cares than to have the public say so?

On the other hand, the Supreme Court is drowning in petitions. I face petitions in almost every case nowadays, including petitions that border on the frivolous. Does the Court really need more paper to read?

Four years ago, I explained the Court’s odd practice of tacitly accepting amicus filings at the petition stage if they were couched using the right language and did not include an amicus briefas an attachment. That approach made some sense. It would be odd for amici to file merits briefs before the parties have done so, and before the Court has even declared which issue(s) it will be reviewing on the merits.

Last year, though, the Court rewrote the Appellate Rule governing the participation of amici. See N.C. R. App. P. 28(i). The language of the revised rule left the appellate bar wondering whether the Court intended to curtail amicus filings at the petition stage altogether.

The revised rule still allows an amicus to move for leave to file a brief. But now, “[t]he motion must be accompanied by amicus curiae’s brief.” N.C. R. App. P. 28(i)(2). Does that mean a motion for leave filed by an amicus at the petition stage has to include a brief? And if so, is the brief supposed to address why the petition should be granted, or the merits of the underlying appeal? Or, did the Court not intend for the rule revisions to alter existing practice?

It looks like we may have an answer, at least in part. Last Friday, the Supreme Court ruled on a number of pending motions for leave filed by amici at the petition stage.

Three such motions were granted.

One motion supported the granting of the petition for discretionary review. The motion explained how the proposed amici could contribute to the Court’s analysis of why the petition should be granted, and attached a brief showing why the petition satisfied the statutory conditions for discretionary review.

The othertwo motions, however, supported reversal on the merits. Each motion explained how the proposed amici could contribute to the Court’s analysis of the merits, and attached a brief showing why the Court of Appeals erred on the merits.

Overall, this is good news. The Supreme Court showed on Friday that it is willing to accept motions for leave filed by proposed amici at the petition stage. The proper procedures for doing so, however, remain a bit murky. The most we can say is that the Court has allowed two motions with merits briefs attached and one with a petition brief attached. We don’t know which of those the Court prefers, nor do we know if the Court would accept a speaking motion with no brief attached.

In my view, the most sensible procedure would allow an amicus motion at the petition stage, with a petition-focused brief attached. After all, it is possible that an amicus wants the Supreme Court to take a case to provide clarity on a particular issue, but does not intend to take a position on the merits. Why should such an amicus have to file a merits brief? Conversely, an amicus with a strong merits position can certainly preview it in a petition brief, since a significant error by the Court of Appeals might be of “significant public interest,” “involve[] legal principles of major significance to the jurisprudence of the State,” or “be in conflict with a decision of the Supreme Court.” N.C. Gen. Stat. § 7A-31(c).

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